New Jersey Court To Rule on Sex-Education Requirement

The fate of mandatory sex education in New Jersey's public schools
was placed in the hands of the New Jersey Supreme Court this month, as
attorneys for the state board of education and a coalition of parents
offered opposing arguments in a case that challenges the state's right
to require sex education in the public schools.

The suit, Smith v. Ricci, was brought by a group of parents in
response to a 1980 state board of education regulation that requires
all districts to teach sex education, beginning no later than the sixth
grade, by fall 1983.

The court's decision, which is expected within the next two months,
may affect other states' plans to adopt mandatory sex-education
programs, according to Mary Ann Burgess, the New Jersey assistant
attorney general who represented the board of education.

Only New Jersey, Kentucky, Maryland, and the District of Columbia
require sex education, according to the Alan Guttmacher Institute, a
population-research organization. Most other states either "encourage"
school districts to provide sex education, or have no formal
policy.

Public Health Measure

Other sex-education cases, Ms. Burgess said, have held that sex
education is a public-health measure that does not infringe on an
individual's First Amendment rights.

The challenged regulation replaced a 1967 measure that made sex
education voluntary. In 1979, a review committee of the state board of
education found that 40 percent of the state's districts offered sex
education. The board subsequently decided that, in view of the
increasing rates of teenage pregnancy and venereal disease, a mandatory
program was necessary.

The 1980 regulation requires that local districts develop guidelines
for teaching sex education. It also requires that parents be notified
of the curriculum and allowed to review the materials, and that
students who object to the material taught in the "family-life program"
be excused from class, according to state officials.

Soon after the state board passed the regulation, a group of parents
opposed to mandatory sex education began to register their disapproval
with the board. Later in 1980, organized as the Coalition of Concerned
Parents, the group filed suit against P. Paul Ricci, then the president
of the state board of education.

The case had not been heard by a court until this month, when oral
arguments were presented to the state supreme court; the state attorney
general sent the matter directly to the state's highest court,
according to state officials.

The question the court must decide, according to papers filed with
the supreme court, is whether "the regulations of the state board of
education requiring family life education programs [pursuant to an item
in the New Jersey state administrative code] violate the establishment
of religion, free exercise, and due process of the United States
Constitution."

Regulation Objected

The parents' group, led in the suit by Mary K. Smith of Belmar,
N.J., objects to the regulation on several counts, according to Joseph
F. Shanahan, the group's attorney.

The "religious atmosphere" surrounding the regulation is one reason
for their disapproval, Mr. Shanahan said. The required material, he
said, includes subjects that children of some religious
persuasions--those that restrict sexual activity to marriage, for
example--could find objectionable. Hence, he added, the discussion of
the advantages and disadvantages of sexual activity at an early age
would run counter to their religious beliefs.

"I felt that what they had put in was inhibiting to religion," Mr.
Shanahan said. "It inhibited the practice of religion."

The state permits an "excusal period" for students who object to the
material, he said, but "by the very fact that they have this, they
admitted that there was more than was normally taught in the schools,''
he said.

'Excusal Period'

The same principle, according to Mr. Shanahan, led the U.S. Supreme
Court to ban prayer in the public schools. "There was an excusal
period" in the prayer case, he said, "but the Supreme Court said that
that was not sufficient."

In addition to objections on religious grounds, the group also
believes that the regulation violates the right to due process. Mr.
Shanahan argued before the court on Feb. 8 that the state board had
decided on a mandatory sex-education program before it held a series of
four public hearings on the matter.

"My first objection was that the hearings were a sham," Mr. Shanahan
said in a telephone interview. "The verdict was in before the witnesses
were heard." He did not argue, however, that the state board attempted
to conceal the decision from the public.

The question of "balancing of the state interest" also figures in
the argument against the regulation, Mr. Shanahan said.

The board passed the regulation, according to the lawyer, to achieve
an objective--lowering rates of teen-age pregnancy and venereal
disease.

But the facts "as stated by the state board indicated that they had
no statistics that showed any linkage between the one and the other,"
he said. "They practically admitted that it was purely conjecture."

Other arguments raised by the parents' group include the possibility
that the regulation represents an "unconstitutional delegation of
legislative power to the state board," Mr. Shanahan said.

Courses Necessary

The state, in response, has argued that courses in sex education are
necessary as part of the state board of education's health-education
mandate and do not interfere with a person's religion, the assistant
attorney general, Ms. Burgess, said.

The board did not ignore the comments offered during the public
hearings, she said. Rather, the regulation was changed substantially in
response to that testimony.

"It does honor the concept of local control," she said. "It leaves a
great deal to the local district. Parents have to be aware of the
curriculum and review the materials. It requires more contact with
parents."

A bill introduced--and defeated--in the 1981 New Jersey legislature
would have changed the statewide sex-education program to an elective
one, in which students would have "opted in" if they wanted to take sex
education, rather than have "opted out" if they found the material
objectionable. This compromise would have been acceptable to the
plaintiffs, Mr. Shanahan said.

The state board of education passed the challenged regulation, state
officials note, because voluntary sex education had not alleviated the
problems of teenage pregnancy and venereal disease.

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